FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS February 29, 2016

TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 15-8105
(D.C. No. 2:05-CR-00078-ABJ-5)
(D. Wyo.)

v.
STEVEN B. JONES, a/k/a Smooth,
Defendant-Appellant.

ORDER AND JUDGMENT*

Before BRISCOE, GORSUCH and McHUGH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,
submitted without oral argument.
Steven Bradley Jones, Sr., appeals the district courts reduction of his sentence
pursuant to 18 U.S.C. 3582(c)(2) after the Sentencing Commission retroactively

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

reduced the base offense level corresponding to his crime of conviction. We review the
district courts decision to reduce a sentence under 18 U.S.C. 3582(c)(2) for abuse of
discretion, but review de novo the district courts interpretation of a statute or the
Sentencing Guidelines. United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir. 2008).
We affirm.
In 2005, Jones was convicted of conspiracy to possess with intent to distribute, and
to distribute, cocaine base, and conspiracy to use a place where crack cocaine is
manufactured, distributed, and used, in violation of 21 U.S.C. 841, 846, and 856.
Based on the amount of drugs attributed to Jones, his base offense level was 38. U.S.S.G.
2D1.1 (2005). The district court applied a two-level enhancement for possessing a
firearm during his offenses, but varied1 Jones offense level downward four levels for
reasons not relevant here. Jones total offense level was therefore 36. His criminal
history placed him in Category V, yielding an advisory sentencing range of 292365
months imprisonment. The district court imposed a 300-month sentence.
The Sentencing Commission later amended the Guidelines, resulting in a
retroactive reduction of Jones base offense level from 38 to 34, effective November 1,
2014. U.S.S.G. app. C, Amend. 782 & 788; U.S.S.G. 1B1.10(d) & 2D1.1(c). Section
3582 of Title 18 permits district courts to modify a term of imprisonment in the case of a

The district courts decision to lower Jones base offense level constituted a
variance pursuant to 18 U.S.C. 3553(a) considerations, rather than a downward
departure from a calculated Guidelines range. See United States v. Alapizco-Valenzuela,
546 F.3d 1208, 122022 (10th Cir. 2008).
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defendant who has been sentenced to a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing Commission. 18 U.S.C.
3582(c)(2). In this type of modification, district courts must substitute only the
amendments to the Guidelines range, and shall leave all other guideline application
decisions unaffected. U.S.S.G. 1B1.10(b). The district court here was therefore
required to leave the two-level enhancement for possession of a firearm intact, and
calculate Jones sentence based on a Category V criminal history. See id. The district
court was without discretion, however, to re-apply the four-level downward variance it
applied at Jones original sentencing. 18 U.S.C. 3582(c)(2); U.S.S.G. 1B1.10(b)(2),
n.1, n.3; United States v. Boyd, 721 F.3d 1259, 1260 (10th Cir. 2013).2 Thus, Jones new
total offense level was 36 (base level of 34 with a two-level firearms enhancement), the
same total offense level calculated at his original sentencing. The advisory sentencing
range therefore remained unchanged: 292365 months. See U.S.S.G. Sentencing Table.
The district court reduced Jones sentence to 292 months.
Jones takes issue with the new sentence because he erroneously calculates his new
offense level at 34, rather than 36, overlooking the two-level enhancement for firearms
possession. He does not contend the four-level downward variance should be applied
nor could he. U.S.S.G. 1B1.10 n.1, n.3; Boyd, 721 F.3d at 126263. An offense level

Although Boyd involved a downward departure in the original sentencing rather

than a variance, U.S.S.G. 1B.10 prevents district courts from considering either prior
departures or variances in an 18 U.S.C. 3582(c)(2) sentence reduction. U.S.S.G.
1B1.10 n.1, n.3; Boyd, 721 F.3d at 126263.
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of 34 would have yielded a range of 235293 months. Jones argues he should have been
resentenced to 243 months imprisonmentthe same differential from the advisory range
minimum as his 300-month sentence in the 292365 range. However, this argument is
inapplicable because the correctly calculated range is 292365 months.
We conclude the district court did not err in its Guideline calculations following
Amendments 782 and 788 to the Guidelines, and we affirm Jones sentence. Jones
motion to proceed without full prepayment of costs and fees is granted.

Entered for the Court

Mary Beck Briscoe

Circuit Judge